Sweeping new ruling on war crimes courts

Posted Mon, July 14th, 2014 1:08 pm by Lyle Denniston

In a sweeping new ruling that both expands and limits the power of U.S. military tribunals set up at Guantanamo Bay to try terrorist war crimes, a federal appeals court in Washington nullified two guilty verdicts of a former close aide to terrorist leader Osama bin Laden, and gave partial support to another verdict but ordered it reviewed further. The ruling — by the U.S. Court of Appeals for the District of Columbia Circuit — runs to 150 pages in five separate opinions. It can be read here.

The ruling did not apply immediately to the ongoing case against five individuals accused of war crimes for the September 11, 2001, terrorist attacks on U.S. soil, but it could affect the range of charges that may go forward in that case. The decision dealt instead with the convictions of Ali Hamza Suliman al Bahlul, a Yemeni national who was accused of acting as press secretary and propagandist for bin Laden and the Al Qaeda terrorist network. (bin Laden was killed by a U.S. military team in Pakistan in May 2011.)

Bahlul, who has been detained at Guantanamo Bay for more than twelve years, was convicted of conspiracy to commit war crimes, providing “material support” for terrorism, and soliciting others to commit war crimes. He was sentenced to life in prison.

In Monday’s ruling, the D.C. Circuit — with only seven of its current eleven judges taking part in the en banc decision (the other four joined the court too late to be involved) — rejected one of Bahlul’s constitutional objections to his conspiracy conviction, but overturned the other two guilty verdicts.

The court ruled that a military commission did not have the authority to try those other two charges for conduct that occurred before Congress created such crimes in the Military Commissions Act of 2006.

Almost all of the terrorist activity that prosecutors alleged against Bahlul occurred before the terrorist attacks on 2001, so the material support and solicitation charges were not available in his case, according to the ruling. That part of the decision was unanimous. It could have an impact on other Guantanamo prosecutions, because all of those facing war crimes trials are accused of conduct that occurred before 2006, and at least some of the specific charges may be in doubt.

In the most important part of the ruling, in constitutional terms, five of the seven judges ruled that the Ex Post Facto Clause — barring criminal prosecution for conduct that happened before it was made a crime — does apply to detainees at Guantanamo Bay facing war crimes charges. (Guantanamo detainees up to now have had only one constitutional right: to pursue habeas challenges to their continued detention.)

What the ruling on the Ex Post Facto Clause means is that, in each case pursued by military prosecutors at Guantanamo, they must show that the conduct being treated as a crime was in fact formally made a crime by act of Congress at the time. That requires the prosecutors to examine the scope of the Military Commissions Act of 2006, and compare it to the history of U.S. military commission prosecutions going back at least to the Civil War.

In a part of Monday’s ruling that had the support of six of the seven judges, the D.C. Circuit decided that Bahlul’s conviction for conspiracy to commit war crimes did have historic roots, so he was properly charged with that offense. The six judges who voted that way had differing reasons for doing so, however.

However, the decision was not final that Bahlul’s conspiracy conviction could stand, even though it was ruled not to have violated the Ex Post Facto Clause. The D.C. Circuit said it had not granted en banc review of other challenges by Bahlul to that conviction, and it ordered the three-judge panel that originally had heard Bahlul’s appeal to rule on them first.

Those other challenges are: Congress did not have the constitutional power, under either Article I or Article III, to treat as war crimes to be tried by military commission any offenses that were not crimes under the international law of war; his convictions violated his First Amendment rights; and, the 2006 law spelling out the powers of war crimes commission violated equal protection guarantees by singling out foreign nationals as the only persons subject to trial before such tribunals.

Once the three-judge panel has ruled on those other challenges to the conspiracy conviction, the case will go back to the Court of Military Commission Review — the appeals court that reviews commission guilty verdicts — to decide what impact on Bahlul’s life sentence would result from the decision to overturn the other two guilty verdicts.

If Bahlul’s other challenges to his conspiracy conviction fail, then that would enhance the importance of the D.C. Circuit’s decision that the crime of conspiracy to commit war crimes may be used to prosecute individuals accused of terrorism acts prior to the enactment of the 2006 military commissions law.

Earlier, a three-judge panel of the D.C. Circuit had ruled in another case (a decision then applied to Bahlul’s case) that military commissions could not try this conspiracy charge for conduct that occurred prior to 2006. The 2006 law did not apply retroactively, that panel had ruled.

On Monday, the en banc D.C. Circuit overruled that earlier decision. It concluded that the 2006 law’s inclusion of conspiracy as a war crime did apply retroactively, for a variety of reasons of history and law. In passing the Military Commissions Act eight years ago, the D.C. Circuit majority found Monday, Congress clearly intended that at least some of the crimes created by that act would reach back at least to the 9/11 terrorist attacks on the U.S., in New York City, Washington, D.C., and in rural Pennsylvania.

Circuit Judge Karen LeCraft Henderson wrote the main opinion establishing much, but not all, of the law decided Monday. She also wrote a separate concurring opinion, because she disagreed with a majority of the judges on the Ex Post Facto issue.

Three judges who also took part in the ruling — Chief Judge Merrick B. Garland and Circuit Judges Thomas P. Griffith and David S. Tatel — did not write separately but they did cast votes supporting some or all of the other judges’ opinions.

The case is Bahlul v. United States (Circuit docket 11-1324). It was argued before the en banc court on September 30. Crafting the final opinions continued over the ensuing eight-plus months.

Four judges more recently named to the D.C. Circuit by President Obama did not take part: Circuit Judges Sri Srinivasan, Patricia A. Millett, Cornelia T.L. Pillard, and Robert L. Wilkins.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

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